Many owners of a first floor apartment enjoy an adjacent private garden area. This garden belongs to the common property of the condominium owners' association (WEG) in accordance with Section 3 (2) of the Condominium Act. If the owners of the first floor apartment acquire the special right of use for the garden area, they can use it privately and exclude the co-owners from using the garden.
A pair of owners of a first floor apartment installed an external staircase in their garden, which was under the special right of use, leading to the balcony of their apartment. At an owners' meeting, the WEG decided by majority vote that the stairs should be removed at the expense of the community. According to the WEG, the installation of the staircase was inadmissible and changed the external appearance of the common property. At the time of the lawsuit, the individual claim for removal was already time-barred. The owners of the first floor apartment did not agree with the WEG resolution and filed a lawsuit against it (AZ 55 S 18/19).
The Berlin-Lichtenberg Local Court rejected this, and the appeal also had no prospect of success. Thus, the Regional Court of Berlin affirmed the judgment of the Local Court on the grounds that the external staircase did not comply with the principles of proper administration pursuant to Section 21 (4) of the German Condominium Act (WEG). Accordingly, the attached staircase represents a long-term objective change of the common property and according to § 22 para. 1 WEG a structural change. The statute of limitations of the individual removal claim was irrelevant in this case. An existing resolution of the owners on the permission to extend or convert the balcony to a terrace was also irrelevant for the ruling, because the content of the resolution does not necessarily have to include the addition of an external staircase.
Source: LG Berlin
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